The Arbino Autopsy: S.B. 80

By Gerald S. Leeseberg of Leeseberg & Valentine on Wednesday, July 8, 2015.

"You are deluding yourself about the Court," said the priest. "[T]hat particular delusion is described thus: before the Law stands a doorkeeper. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed, then, to enter later. 'It is possible,' answers the doorkeeper, 'but not at this moment.' Since the door leading into the Law stands open as usual and the doorkeeper steps to one side, the man bends down to peer through the entrance. When the doorkeeper sees that, he laughs and says: 'If you are so strongly tempted, try to get in without my permission. But note that I am powerful. And I am only the lowest doorkeeper. From hall to hall, keepers stand at every door, one more powerful than the other. And the sight of the third man is already more than even I can stand.' These are difficulties which the man from the country has not expected to meet, the Law, he thinks, should be accessible to every man and at all times...."

The Trial, Franz Kafka

Arbino v. Johnson & Johnson, 2007-Ohio-6048, S.B. 80 is but the latest chapter in a 30-year battle over what is commonly referred to as "tort reform." This controversy has seen the legislature repeatedly pass numerous statutes in various permutations seeking, in essence, to limit the liability of tortfeasors and/or the compensation they must pay to those injured by tortious conduct, be it negligent, willful and wanton, or intentional. Reform efforts have addressed the area of general tort law as well as, more specifically, product liability and medical malpractice. Since the vast majority of torts and tortfeasors are covered by liability insurance, the true focus of these legislative initiatives is to limit the amount of money that insurance companies must pay on claims. Simply put, they have been designed to protect the profits of insurance companies.

From a political standpoint, the insurance industry recognizes that it cannot go to legislators seeking special legislation designed to enhance its profitability. Instead, this objective has been advanced by surrogates, typically those aggrieved first and foremost by increased insurance premiums: small business owners claiming that their very existence is threatened; physicians complaining about "frivolous lawsuits"; large businesses claiming they are at a competitive disadvantage because of the mere threat of lawsuits, and so on.

What is most remarkable is that during the entire course of this war over tort reform, proponents have consistently failed to produce empirical data to support their claims. For example, with regard to the evidentiary basis for limiting punitive damages, despite three decades of purported ruinous economic harm, even the majority opinion describes the legislative record before it as "thin"; Justice Pfeifer, in dissent, describes it as "vaporous." Nowhere in the majority opinion is there any citation to the legislative record of any data concerning the number, amounts, or effects of, punitive damage awards, because such figures do not exist. As Justice Pfeifer points out, there are only citations to statements by pro-tort reform political-appointees, surveys of corporate attorneys, and non-peer reviewed, non-academic, "studies" by pro-business groups relying upon suspect data. While the legislative statements of intent repeatedly purport to effect a balancing of the interests of those "legitimately harmed" with remedying the ills of "frivolous lawsuits," nowhere has the legislature, or the majority, ever responded to Justice Pfeifer's call for an answer to the question of how capping the damages of legitimate claims will in any way address the alleged epidemic of "frivolous lawsuits" (for which proposition, again, no data was produced or cited). In the absence of any such data or explanation, Justice Pfeifer was left to conclude the obvious:

"The only basis for R.C. 2315.18 that I can see is that, as between business interests and the people of Ohio, the legislature prefers business."

The majority expressly declined to assess the validity of any of the proffered underpinnings or rationale, claiming the sole responsibility for determining public policy belongs to the legislature. The Court thus abdicated its responsibility to insure that usurpation of the Constitutional right to a jury trial was premised upon something other than politically expedient window dressing. It is distressing that the Court accepted the implicit criticism by the legislature that the judicial branch is incapable of doing its job properly through the exercise of extant mechanisms such as remittitur to insure excessive damages are not imposed. In so doing, the Court has subjugated itself, and become subservient to, the legislature. And, in so doing, the majority affirms Justice Pfeifer's observation, that the only public policy being advanced here is that of business interests.

"I have a basic philosophical difference with the members of the majority***. I believe that the Constitution of Ohio is the fundamental doctrine that protects all Ohioans, not just those with the most lobbying power." Emphasis supplied.

George Mason, author of the Virginia Declaration of Rights, in speaking about the abuses of the British Parliament, cautioned that legislatures "ought to know and sympathize with every part of the community," and of the dangers attendant to the failure to do so:

"An aristocratic body, like the screw in mechanics, working its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency."

Madison, Records of the Debates in the Federal convention of 1787, cited in "In Defense of Trial by Jury" by the American Jury Trial Foundation, p. 454.

Justice O'Donnell, in his separate dissent, cautioned about this exact insidious evil:

"Accordingly, it is my view that R.C. 2315.18, which substitutes the judgment of the General Assembly for that of a jury, violates Section 5, Article 1 of the Ohio Constitution and therefore is unconstitutional and opens the door to further encroachments." Emphasis supplied.

Such concern is not academic, nor paranoid. In fact, the legislature has already enacted further encroachments: S.B. 281, which applies exclusively to "medical claims" has a "soft" cap similar to S.B. 80 on "noncatastrophic" malpractice injuries, but also a "hard" cap on catastrophic injuries as well. Thus, unlike injuries under S.B. 80, under S.B. 281 catastrophic injuries resulting from malpractice are "capped" at $500,000. Admittedly, the majority takes great pains repeatedly to point out that it is only approving S.B. 80 because it does not place limits on catastrophic injuries:

"The second prong of the rational-basis test asks whether the statute is arbitrary or unreasonable. In Morris, we found that the damage caps violated this prong because they imposed the cost of the intended benefit to the public solely upon those most severely injured. Id., 61 Ohio St.3d at 690-691***. We repeated this concern in Sheward, albeit in dicta. [citation omitted] R.C. 2315.18 alleviates this concern by allowing for limitless noneconomic damages for those suffering catastrophic injuries." Emphasis added.

The danger, however, is that once emboldened and given the imprimatur of the Court, the legislature will be viewed by special interests as a "tool of the aristocracy." Apparently "those with the most lobbying power" view the Ohio legislature as exactly that. They have persisted, despite repeated pronouncements by the Supreme Court over three decades that their objectives are unconstitutional. And, at last, they have won. Indeed, the majority cites the success of these same forces in other states as support for finally allowing them to succeed in Ohio. In so doing, Ohio finally joins a distinct minority of states where such legislative initiatives succeeded earlier, while repeatedly being rejected in Ohio.

What, then has changed in Ohio? The obvious answer is the composition of the Court. All of the Supreme Court justices are now Republicans. Some recently elected justices have expressly campaigned on themes such as being "pro-business" or "physician-friendly", and using code phrases such as "strict constructionism", "anti-activist", or "judicial restraint." Their campaigns have been supported heavily by the insurance industry, the Chamber of Commerce and its allied business interests, and the medical profession. A massive disinformation and propaganda media campaign, often financed and waged by industry-funded front groups posing as concerned citizen associations, such as Ohio Citizens Against Lawsuit Abuse, has endeavored to sway public opinion, convince it of a non-existent "litigation crisis," and provide cover for their legislative initiatives and those who would be called to act, or pass judgment, upon them.

Having a mere change in composition of the Court provide the basis for a failed, unconstitutional agenda to succeed is fraught with further harm to the institution of the Court. As noted constitutional expert Robert S. Peck has eloquently stated:

"Electoral victories of this type, which does not amend the state constitution, should not change embedded principles as if they were the spoils of political wars. The Supreme Court has noted that '[a] basic change in the law upon a ground no firmer than a change in [a court's] membership invites the popular misconception that this institution is little different from the two political branches of the government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.' " [citations omitted]

Given the new composition of the Court, proponents of this legislation were openly arrogant in their confidence that they would, at long last prevail, and enjoy success similar to that in numerous other states where the same model had been employed to limit the rights of citizens to hold wrongdoers accountable.

Ironically, in order to allow the proponents to accomplish their objectives, the avowed strict constructionists and advocates of "judicial restraint" had to employ sophistry of the highest order. That is because the right to a jury trial in Section 5, Article I of the Ohio Constitution, adopted in 1802, "shall be inviolate." The Oxford English Dictionary defines "inviolate" as "free from injury or violation," and the Cambridge Dictionary defines such a right as one which "must not or cannot be broken, damaged, or doubted."

The majority acknowledges a plaintiff has a constitutional right to have a jury determine the extent of the damages suffered. The majority also states that "any law that allows another entity to substitute its own findings of fact is unconstitutional." And yet, the majority then holds that it is permissible for the legislature to mandate that a court ignore the findings of the jury in every case, and substitute an arbitrarily determined award regardless of the findings of fact. To avoid the clear proscription against infringing upon this right, the majority simply says that this does not violate the right to a jury trial because the courts do not alter the jury's findings of facts - the court simply ignores them! In other words, the majority has said "you still have a constitutional right to a jury trial, we are just going to ignore the jury's verdict."

"Was there ever any doubt how this case would come out? The members of the majority have long talked about judicial restraint. *** Today we learn that 'judicial restraint' was code for 'the General Assembly can do no wrong when it comes to tort reform.' Today is a glorious day for the backers of 'judicial restraint.' Today is a day of fulfilled expectations for insurance companies and manufacturers of defective, dangerous, or toxic products that cause injury to someone in Ohio."

Chief Justice Moyer has decried the cost of electing judges. However, by finally granting tort reformers success as a result of their efforts to spend whatever it takes to elect justices deemed sympathetic to their cause, the Court has only served to encourage such conduct and have the Court appear to be a spoil of political war.

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